Updated 16 May 2018

Legal concerns raised over proposed smoking Bill

A legal expert has raised concerns over the proposed anti-smoking Bill, saying that the legal approach will need to be bespoke and better suited to take into account e-cigarettes.

Health Minister Aaron Motsoaledi published the draft Control of Tobacco Products and Electronic Delivery Systems Bill last week, with harsh penalties for potential transgressors, if the Bill was passed.

But a legal expert has raised concerns about some of the language in the Bill, and possible sticking points, especially surrounding e-cigarettes.

One of the features of the Bill was the inclusion of e-cigarettes, something that the minister had previously mooted.

Now, Neil Kirby, director and head of healthcare and life sciences practice at Werksmans Attorneys, states there are two difficulties which arise from the Bill's definition of "smoking".

Definition of 'smoking'

The Bill defines "smoking" as "inhaling, exhaling or holding 'or otherwise have control over an ignited tobacco product or a heated, but not ignited, tobacco product that produces an emission of any sort'" or "inhaling, exhaling or holding 'or otherwise have control over an electronic delivery system that produces an emission of any sort'".

Kirby says that in respect of electronic delivery systems, two difficulties arise.

"The first is that simply holding a device that constitutes an electronic delivery system constitutes smoking. Such a scenario means that a person holding a device but not inhaling or exhaling the contents in the device that contain nicotine will be considered to be smoking," he says.

"Such circumstances potentially widen the definition of 'smoke' in situations where no smoking per se is occurring. This cannot be the intention of the Bill."

"The second problem the definition, and consequently the Bill, faces is that one cannot inhale or exhale a system. The definition of the term 'electronic nicotine delivery system' describes the system as 'an electronically operated product', which is clearly distinct from a tobacco-based product."

Potentially absurd laws

Based on this, Kirby says that the Bill arguably falters over its own definitions and produces potentially absurd results in law, which cannot be the intention of the Bill and ultimately that of the final legislation.

"... the legal approach to controlling alternative products, such vaping products or similar electronic delivery systems, will have to be bespoke and better suited to take into account the nature of the particular products concerned and the technology that they employ," he said.

The Bill is open to public comment until 9 August 2018.

Further comment re the Bill is expected from Minister Motsoaledi later on Tuesday, when he delivers his health budget speech.

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